IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 87 of 2011L

BETWEEN :

HARMANT PRASAD as Administrator of the 
ESTATE OF AVINESH PRASAD late of 5 Ram Asre Road, Tavakubu, Lautoka, Mechanic.
PLAINTIFF

AND:

DOMINION INSURANCE LIMITED 
a limited liability company having its registered office at 1st Floor, 231 Waimanu Road, Suva.
DEFENDANT

Counsel: Young & Associates for the Plaintiff
A.K. Lawyers C/A Krishna & Co. for the Defendant

RULING
BACKGROUND

1.	This is the plaintiff's application seeking leave to file a supplementary affidavit. If leave is granted, the supplementary affidavit to-be-filed will annex a certified copy of an insurance policy, which policy is at the heart of the plaintiff's case against the insurer. The insurer (defendant) is resisting the plaintiff's application. The insurer, is also the author of the policy in question. The plaintiff's application was filed shortly after the substantive hearing (based on affidavit evidence) of the Originating Summons. As yet, no final judgement has been delivered with respect to the substantive matter. 

FACTS

2.	The precursor to this case was civil action HBC 274 of 2006. In that case, Mr. Justice Finnigan, on 15 December 2006, awarded Harmant Prasad ("Prasad"), a judgement sum of $46,754.32 plus $3,000 costs. The award was against Satendra Prasad Construction Limited ("SPCL"). Prasad had sued SPCL in his capacity as administrator of the estate of his late son, Avinesh Prasad ("Avinesh"). 

3.	Avinesh had worked as a mechanic for SPCL. He died on 14 February 2001 out of injuries he sustained when a tractor he was driving at an SPCL-worksite, for SPCL, and in the course of SPCL business, tipped off-balance and crushed him ("incident"). 

4.	On 30 November 2004, some two years before Finnigan J's judgement, SPCL was wound up. Because SPCL had maintained an insurance policy with DIL to cover workmen's compensation and common law claims by its employees, Prasad has been seeking to enforce the judgement against DIL. Hence, by Originating Summons filed on 06 June 2011, Young & Associates is seeking, inter alia, a declaration that DIL is liable to the plaintiff in the sum of $46,754.32 awarded by Finnigan J in Civil Action 247 of 2000 against SPCL with interest at the rate of 10% pursuant to the Insurance Law Reform Act. 

COMMON GROUND

5.	Below are facts which are not in dispute between counsel:

(i)	SPCL held a Workmen's Compensation Policy of Insurance with DIL. 
(ii)	the said policy was current at the time of the incident. 
(iii)	the policy also had a common law extension.
(iv)	on 24 February 2004, DIL did comply with an Order of the High Court in this case (Civil Action No. 274 of 2006) which had directed it (DIL) to make an interim payment of $15,958.00 to Prasad. 
(v)	DIL had defended the subrogated trial of Civil Action No. 274 of 2006. 
(vi)	Avinesh did not hold the appropriate LTA-licence to be driving the SPCL tractor in question. 
(vii)	SPCL had allowed Avinesh on that fateful day (as it had on several previous occasions) to drive the said tractor.

WHETHER SPCL DID BREACH THE POLICY?

6.	DIL, apparently, had no inkling whatsoever, until the evidence emerged during the trial of HBC 274 of 2006, that Avinesh was not licensed to operate the tractor. The surfacing of that evidence appears to have caused DIL to retract from its earlier stance, which stance had seen it (DIL) settle an interim payment with the plaintiff. As Mr. Narayan would have this court believe, DIL would not have made any interim payment had the evidence come to light at that interlocutory stage. As it turned out, in light of that evidence, DIL is refusing to settle the judgement sum against SPCL on the ground that SPCL had breached an essential condition of the policy by allowing Avinesh to operate the tractor without a valid license.

7.	It seems to be common ground between the parties that SPCL did allow Avinesh to drive the tractor on that fateful day with full knowledge that Avinesh did not possess the requisite license. Mr. Young neither concedes nor denies that SPCL was in breach of any condition of the policy. His assertion that DIL is still liable in any event on the basis of waiver and/or estoppel somewhat circumvents that point. 

8.	There is no need for me to delve into these substantive arguments at this time. Suffice it to say that the plaintiff's application to properly put before this Court the insurance policy in question – has arisen from the argument that – without the insurance policy, the plaintiff cannot sustain an argument based on the principles of estoppel or waiver.

APPLICATION TO ADDUCE FURTHER EVIDENCE

9.	What is before me now is an application by Young & Associates under Order 3 Rule 4 of the High Court Rules 1988 and under the inherent jurisdiction of this Court:

…for AN ORDER that the Plaintiff be given leave to file and serve a Supplementary affidavit and that the Plaintiff be given a further 7 days to file its submissions in reply to the Defendant's submissions filed on 25th February 2014.

10.	As I have said above, the plaintiff files this application in order to place properly before this Court a copy of the policy of insurance in question. This application was prompted by a submission of Mr. Narayan during the substantive hearing of the Originating Summons which highlighted the evidentiary gap in the plaintiff's case. The argument goes that, without adducing the insurance policy in question, the plaintiff cannot argue that estoppel or waiver.

SUBMISSIONS/LAW

11.	Both counsel appear to take it as granted that the principles in Ladd v Marshall [1954] 3 All ER 745 apply on all fours in the application now before me.

12.	Ladd v Marshall, without question, is still good law for what it stands for, and is consistently applied in Fiji as well as throughout the common law world to this day. The case established the principles by which the Court should be guided, when confronted with an application to accept fresh evidence. I observe that the case itself concerned a situation where, the party seeking leave to adduce fresh evidence had done so:

(i)	following a trial, and, the pronouncement of a judgement in the court below. 

(ii)	where, the judgement pronounced, was adverse against the party seeking to adduce fresh evidence.

(iii)	by application to the appellate court where an appeal (or an application for leave to appeal) of the judgement of the court at first instance, is also afoot.

13.	The principles which emerged from that case are as follows:

(a) 	the evidence could not have been obtained prior to trial by reasonable diligence; 

(b) 	it must be such as could have had substantial influence on the result; 

(c) 	it must be apparently credible. 

14.	Mr. Young concedes to the principles in Ladd v Marshall. He argues however that the bottom line in all of it is, where the justice of the case lies.

COMMENTS

15.	If Ladd v Marshall were to be applied literally on the facts before me, the plaintiff would have the greatest of difficulty satisfying the first limb of the three-tiered test. Mr. Narayan argued rather strongly on this very point. He submits that the plaintiff and his advisers were always aware of the existence of the policy in question. He points out that, at the time the action was filed, the insurance policy was always available to the plaintiff. He should have put that in evidence if he was going to rely on estoppel.

If they decided not to put it before the court or had overlooked it then this is a hazard every litigant and practitioner faces in practice and must bear the consequences.

One cannot shift the goal post every time the other party makes a submission of law based on adequacy of the evidence.

It would be unfair to the Defendant if fresh evidence through Supplementary Affidavit if allowed.

16.	In Pillay v Chand [1998] FJCA 35; Abu0064u.96s (28 August 1998), a case which Mr. Narayan cites, the Fiji Court of Appeal said:

There can be no doubt that where there has been a full hearing as in this case it would be "a grave injustice if a successful party were deprived of his Judgment by the emergence of material which should have been before the Court originally" refer: Australia and New Zealand Banking Group Ltd v Merchant Bank of Fiji 1994 F.C.A. at page 581. 

The appellant had no less than three solicitors acting for him at different times between the date of the accident on 2 September 1985 and the date of the trial on 3 June 1996. The evidence now sought to be admitted was not only available at the trial; it was available at the date of the accident. The appellant's failure to produce the evidence now applied for really presents him with an insuperable difficulty. This more so when it was available to his three solicitors throughout the 11 years before the actual trial. Of course, the appellant now alleges that his difficulties emanate from his counsel's representation or lack of it on his behalf. He put it this way – 

"The Appellant was denied his day in Court due to the actions of Mr Shah. The Appellant was denied his right to have his case properly defended. The Appellant should not be made to suffer as a result of Mr Shah failing to efficiently and/or effectively representing him."

The appellant's difficulty with that submission is that we have no information why counsel conducted the appellant's defence in the way that he did. Normally, there would be an affidavit disclosing that information. How and why counsel conducts a defence in a particular manner should not simply be left to conjecture or assumption. 

In our view it would be quite unfair to the 1st respondent to allow the appellant to produce fresh evidence given the circumstances and background that we have referred to above. We therefore reject the appellant's application for leave to adduce further evidence. 

17.	I observe that Pillay v Chand was a case where fresh evidence was being sought before the Fiji Court of Appeal, together with an appeal proper of the judgement of Court below.

18.	The other case which Mr. Narayan cites, namely the House of Lords decision in Sheddon v Patrick (1869) (L.R. 1H.L. Sc at 545, also concerned a situation similar to the one in Pillay v Chand. Below I reproduce that passage from Sheddon which Mr. Narayan relies on. 

It is an invariable rule in all the Courts, and one founded upon the clearest principles of reason and of justice, that if evidence which either was in the possession of parties at the time of trial or by proper diligence might have been obtained is either not produced, or has not been procured, and the case is decided adversely to the side to which the evidence was available, no opportunity for producing that evidence ought to be given by the granting a new trial.

19.	Similarly, the case of Young v Harper, 8 NZLR at 176 which Mr. Narayan also cites, speaks against encouraging the grant of a "new trial" upon the discovery of "fresh evidence".

With respect to the discovery of fresh evidence, it is a most dangerous ground on which to grant a new trial. It ought only to be allowed under extremely exceptional circumstances. In England there are only two or three cases in the books in which a new trial has been allowed on this ground. There can be no more fruitful encouragement to perjury than the granting of new trials for this reason.

ANALYSIS

20.	In this case before me now, I have yet to make any final judicial pronouncement on the substantive issue of whether or not DIL can be liable. Furthermore, this court is not sitting on appeal of any decision of any Court below. If the plaintiff was to be granted leave to file a supplementary affidavit to adduce the insurance policy in question, or, for that matter, any other document, it is hard to see how that might amount to an "encouragement to perjury". After all, what the plaintiff is seeking to adduce formally into Court, albeit after the hearing of substantive arguments, is a document, the existence of which, and the contents of which, is not at all in contention, given the following:

(a)	the document (insurance policy in question), as Mr. Young points out, is a document that originated from the defendant (DIL). 

(b)	DIL authored the document. DIL is also a party to the contract of insurance embodied in the document. 

(c)	the document, was the basis upon which DIL had acquired locus to mount a subrogated defence of the claim against SPCL in HBC 274 of 2006. 

(d)	the document was the basis upon which DIL became obligated to pay interim payment in HBC 274 of 2006.

21.	Considering all of the above, I am of the view that the interest of justice which Ladd v Marshall is designed to safeguard would, in no way, be under any threat of compromise if I were to grant Order in Terms of the plaintiff's application in this case. That interest of justice, is no where better explained than in the following words of Lord Wilberforce (though dealing with a slightly different issue) in Ampthill Peerage (1976) 2 WLR 777:

English law .... place(s) high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes. [It]...is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the expiry of limitation periods. Any determination of  disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of  peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of  truth (I do not say that this is such a case), and these are cases where the law insists on finality. For a policy  of  closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out  of  time: so the law still more exceptionally allows judgments to be attacked on the ground  of  fraud: so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule  of  high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved."

22.	I also say that the situation which perturbed the Fiji Court of Appeal in Pillay v Chand does not even arise here, nor is there any likelihood that the peril for which the warning in Young v Harper was sounded would transpire in this case. I say all of the above after considering the following:

(i)	no "new" trial will be necessary in this case if I were to grant the Orders sought as the matter is still sub-judice before me. 

(ii)	there are really no triable issues involved in this case. As I have said, the policy originated from DIL. To adduce it at this time raises no triable issue of fact. 

(iii)	hence – it is highly unlikely (nor will it be necessary) - that the granting of Order in Terms will compel either party to call any witness to either confirm or refute the policy – or to file any fresh affidavit.

(iv)	flowing from the above, and given that the issues between the parties are mostly (if not entirely) legal (not factual) issues, the acceptance into evidence of the insurance policy has no bearing on the weight (or lack of it) of any evidence given earlier by affidavit. The insurance policy is not being sought to refute any evidence given earlier. In fact, as I have stated above, the policy is not in the least contentious. The existence of, and the contents of, the policy is not a triable issue as the document did in fact originate from DIL. In other words, the policy will not operate to cast doubt on any evidence given earlier – or expose the credibility of any witnesses who had hitherto sworn an affidavit, nor expose any such witness to perjury. 

CONCLUSION

23.	After considering all, it is my decision that the interests of justice would be better served by allowing the plaintiff to adduce the policy in question. The plaintiff is to file and serve a supplementary affidavit in 7 days (i.e. by 25 August 2015). The defendant may file an affidavit in reply 7 days thereafter (i.e. by 01 September 2015). Case adjourned for mention on 02 September 2015 at 10.30 a.m. for further directions. Costs in the cause.

………………………………..
Anare Tuilevuka
JUDGE
18 August 2015.